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A Tool for Lawmakers to Fight Racial Disparity in Criminal Justice

Racial impact statements can provide state legislators with a way to evaluate the impact of proposed legislation on sentencing and incarceration. Nine states have adopted them, and more should follow.

The Senate Chamber in the Oklahoma statehouse.
The Senate Chamber in the Oklahoma statehouse.
(Alizada Studios/Shutterstock)
Along with the rest of the country, our states of Oklahoma and Nebraska have a history that’s represented in our prison populations. The Sentencing Project recently reported that one out of every 42 Black men in Oklahoma is in prison. In Nebraska, Black residents are incarcerated at a rate nearly nine times that of white residents, and Latinos are imprisoned at double the rate of whites.

We know the causes of these disparities: an enduring legacy of racial subordination, racist policies and practices in policing and prosecution, and the long history of structural disadvantages that reinforce racial disparities.

The fight for racial justice within the nation’s criminal legal system continues, and we’re beginning to see some progress: In 2015, for example, Nebraska lawmakers abolished the death penalty, although it was reinstated a year later after a campaign by the governor to get a repeal measure on the ballot. In 2016, Oklahoma voters approved a ballot measure reclassifying certain felonies as misdemeanors. The Sentencing Project reports that through a mix of reforms, nine states have reduced their prison populations by 30 percent or more in recent years.

That’s encouraging, but it’s just a start. Lawmakers must do more. For our part, we have championed racial impact statements for proposed legislation in Oklahoma and Nebraska and will work to reintroduce the legislation in future legislative sessions. Racial impact statements are a tool for lawmakers to evaluate potential disparities of legislation prior to adoption and implementation. Nine states — Colorado, Connecticut, Florida, Iowa, Maine, Maryland, New Jersey, Oregon and Virginia — have already implemented mechanisms for the preparation and consideration of racial impact statements.

The case for such a mechanism in the legislative process is clear. The Sentencing Project data underscores the need for our legislative colleagues in Oklahoma and Nebraska and across the nation to take a harder look at racial biases influencing the policies and practices playing out in the criminal legal system.

System stakeholders are aware of the disparities. Rational officials know that in the aggregate, Blacks are not disproportionately likely to commit certain crimes but are more likely to end up in prison, while whites convicted of similar offenses are more likely to get alternative outcomes.

The new data supports growing awareness that mass-incarceration practices do not contribute to public safety but instead contribute to an unfair and inefficient legal system. Mass incarceration has perpetuated the disadvantages that African Americans and other people of color have endured historically. Solving foundational problems through improved access to education, decent housing, prevention services focused on at-risk youth, and job training and placement is challenging but part of the work to repair the harms of mass incarceration.

There’s plenty of room for action in the legislative arena as well, and that’s where racial impact statements can play an important role. Iowa was the first state to adopt them. At the time, Black Iowans were 13.6 times more likely to be imprisoned than white residents. That ratio has since declined to 9 to 1 after the use of racial impact statements informed lawmakers on drug-sentencing proposals. Iowa shows us that lawmaking can address the racial disparities in state imprisonment.

As policymakers, we must first accept that our system discriminates and then aggressively implement policies and practices that articulate measurable goals to counter discrimination in our criminal justice system. Legislative leadership must take personal responsibility for fixing the problem. We call on our colleagues around the country to join us in making the legal system fairer and less likely to destroy human potential.

George Young, a Democrat, is a member of the Oklahoma state Senate. Terrell McKinney, a Democrat, is a member of the Nebraska Senate.

Governing’s opinion columns reflect the views of their authors and not necessarily those of Governing’s editors or management.
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